COMMONWEALTH VS. ROYCE HILL

CYPHER, J. A jury convicted the defendant of home invasion, robbery, two counts of rape, assault and battery, and indecent assault and battery. On appeal, the defendant claims that (1) police testimony that established that the victim had selected the defendant's photograph from an array was improperly admitted because the victim was never asked at trial to select the photograph she had previously identified, and (2) the testimony of the Commonwealth's expert witness about the deoxyribo-nucleic acid (DNA) testing was based solely on inadmissible hearsay. We affirm.

The jury could have found the following facts. On the morning of October 19, 1995, the defendant walked through the front door of an elderly woman's apartment. The defendant grabbed the woman, dragged her into the bedroom, and forced her onto her back, on the bed. The defendant kissed her left breast, put his mouth on her vagina and then inserted his penis into her vagina and ejaculated. The defendant searched the apartment, took various household items and a small amount of money, and left.

The only issue at trial was the identity of the perpetrator.

1. Pretrial photographic identification. When asked at trial to identify the man who had attacked her, the victim pointed to a man other than the defendant but indicated that she was uncertain. The victim also testified that, when police had shown her some photographs and asked her if she could identify the person who had attacked her, she "picked [the photograph] right out," and told the detective, "That's him." The prosecutor did not ask the victim to identify the photograph she had selected. Instead, the prosecutor called Detective Garvin as a witness, and he testified that the victim had selected the defendant's photograph. Garvin also testified that he and the victim initialed the photograph. The photograph was admitted in evidence.

The defendant argues that Garvin's testimony violated the prohibition set forth in Commonwealth v. Daye, 393 Mass. 55 , 60-61 (1984), against using extrajudicial identification by a third party as substantive evidence when the identifying witness does not acknowledge the identification or does not explicitly state that she identified the defendant. The defendant did not

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object, so our review is limited to a determination of whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Bassett, 21 Mass. App. Ct. 713 , 719 (1986).

Commonwealth v. Daye, supra at 62-63, prohibits the Commonwealth from improving its "position by declining to ask the identifying witness to select at trial the photograph previously identified." See Commonwealth v. Seminara, 20 Mass. App. Ct. 789 , 796 (1985). Without a proper foundation, it was error to permit Garvin to testify that the victim had selected the defendant's photograph. See Commonwealth v. Daye, supra; Commonwealth v. Seminara, supra at 796; Commonwealth v. Muse, 35 Mass. App. Ct. 466 , 470 (1993); Commonwealth v. Day, 42 Mass. App. Ct. 242 , 247 (1997).

Nevertheless, the error did not create a substantial risk of a miscarriage of justice. First, trial counsel effectively used the evidence to bolster the defense theory that the police were biased against the defendant and had skewed the investigation in a manner that would insure the erroneous identification of the defendant. [Note 1] Second, the jury would have easily been able to conclude from other evidence that the victim had identified the

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defendant. [Note 2] Third, in light of the other evidence admitted at trial, any error did not create a substantial risk of a miscarriage of justice. That evidence included a composite drawing resembling the defendant; DNA evidence that supported the conclusion that the defendant was the attacker, see infra; serology evidence that the attacker, like the defendant, did not secrete blood in his bodily fluids, a characteristic found in about fifteen percent of the population; the defendant's statements; and the victim's description of her attacker, which matched the defendant's appearance in material respects.

2. DNA evidence. At trial, the Commonwealth introduced the expert testimony of Dr. Jennifer Reynolds, a staff scientist at Cellmark Diagnostics (Cellmark), a recognized forensic laboratory specializing in the analysis of DNA. See Commonwealth v. Sparks, 433 Mass. 654 , 658-659 (2001). The defendant claims that Dr. Reynolds's testimony was inadmissible hearsay because it depended entirely on the out-of-court assertions of another (the analyst who conducted the tests) for its factual basis. The defendant did not object on this ground below. [Note 3] We conclude that the judge did not abuse his discretion, much less create a substantial risk of a miscarriage of justice, when he ruled that the expert could base her opinion on the testing that he found had been properly conducted under the rule stated in Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986). See

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Commonwealth v. Waite, 422 Mass. 792 , 804 (1996); Canavan's Case, 432 Mass. 304 , 312 (2000) (abuse of discretion standard applied to trial judge's analysis under Commonwealth v. Lanigan, 419 Mass. 15 [1994]).

Dr. Reynolds testified that, at the joint request of the defendant and the prosecution, Cellmark tested five sets of items taken in the aftermath of the crime. She concluded that the testing disclosed that the defendant could not be excluded as the source of the sperm detected on the vaginal swab and the victim's pants or as the source of the material detected on the swab of the victim's left breast. She also concluded that the results indicated that the approximate frequencies for a match in the African-American population between the genotypes analyzed in the tested samples, when compared with the genotypes obtained from the defendant's blood sample, were one in 160 million. [Note 4] Dr. Reynolds described the basis of her opinion, explaining that, while she neither personally conducted

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the testing nor personally supervised it, part of her job at Cellmark included testifying in court regarding tests that Cellmark performed. Dr. Reynolds testified that "if [she] did not personally technically review the case when the report was signed, [she] technically review[s] the case very thoroughly so that [she is] able to come to court with complete knowledge and understanding of the contents of the case folder and the work that was done." [Note 5]

Dr. Reynolds's testimony was properly admitted. When considered closely, the defendant's argument that Dr. Reynolds's opinions should have been excluded, either because she lacked personal knowledge of the testing or because the testing had not been admitted in evidence and therefore its reliability could not be assessed, is irreconcilable with Department of Youth Servs. v. A Juvenile, 398 Mass. at 531-32. There, the Supreme Judicial Court held that, in addition to personal knowledge and facts contained in a hypothetical question, an expert may "base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." Id. at 531. The court took this "modest step" to "eliminate the necessity of producing exhibits and witnesses whose sole function is to construct a proper foundation for the expert's opinion." Ibid.

The rule permits an expert to formulate an opinion based on facts or data that are independently admissible. "[A]dmissible" is defined in Webster's Third New Ind. Dictionary 28 (1993) as "capable of being allowed . . . entitled or worthy to be admitted." Facts or data that are independently admissible by

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definition, therefore, need not actually be admitted before an expert may rely on them to form an opinion. Thus, to the extent the defendant is simply arguing that Dr. Reynolds's testimony was inadmissible because it was based on facts or data not in evidence, the argument fails. [Note 6]

After the briefs were submitted in this case, the Supreme Judicial Court issued a decision considering a similar issue. In Commonwealth v. Sparks, 433 Mass. 654 , 659 (2001), the defendant argued at trial that because the expert, Dr. Cotton, was not the actual staff scientist who had conducted the initial review of the analyst's work and had not conducted the analysis, her testimony could not be admitted unless the Cellmark analysts involved in the testing were also called to testify. Although appellate counsel in Commonwealth v. Sparks focused on a different issue, the Supreme Judicial Court touched upon trial counsel's objection and affirmed the trial judge's decision to admit Dr. Cotton's testimony. Id. at 659-660. The Supreme Judicial Court stated that, because the defendant had made no persuasive showing "that the testing was unreliable, the judge properly admitted Dr. Cotton's testimony under the rule stated in Department of Youth Servs. v. A Juvenile, supra [at 531]." Commonwealth v. Sparks, supra at 660. See Commonwealth v. Leinbach, 29 Mass. App. Ct. 943 , 944 (1990) (testimony of a senior chemist from the Department of Public Safety crime laboratory regarding weight and content of eight bags of contraband was admissible even though the chemist had not performed the tests).

Here, the defendant's argument that Dr. Reynolds's testimony ought to be excluded as hearsay is in part premised on his contention that Dr. Reynolds simply read from the Cellmark file rather than conducted her own independent analysis of the laboratory results. The judge observed that Dr. Reynolds "did say certain things that were really reading from records" and that Dr. Reynolds "may have to some extent [] read to [the jury] the

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content of a record." The use of the terms "certain things" and "to some extent" signal that the judge viewed Dr. Reynolds as having read from only a part of the Cellmark file. The judge offered to remedy the error by excluding that part of Dr. Reynolds's testimony, and also ruled that the other portions would remain in evidence. Trial counsel's inability to recall any specific statements that should be excluded on these grounds evidences the nonprejudicial nature of the testimony.

Moreover, it is clear from the entire record that Dr. Reynolds's opinions were primarily based on her own experience and expertise as independently applied to test results obtained in this case. Dr. Reynolds's explanations concerning the sample forms she brought with her, her description of the testing Cellmark does generally, and the specific testing that was done in this case, including references to the original film that showed the results of the STR testing, demonstrate that she independently reviewed the empirical data generated in this case. [Note 7] This conclusion is also bolstered by trial counsel's closing argument, in which he urged the jury to discredit the testing because there was a discrepancy between Dr. Reynolds's analysis of the test results and those reported by the Cellmark analyst and supervising staff scientist. This argument provides a clear indication that Dr. Reynolds did not simply parrot the reports of others.

To the extent that the defendant's argument may also be viewed as raising the suggestion that the facts and data underlying Dr. Reynolds's testimony may have been based on improperly or unreliably performed testing procedures, that argument also fails. Generally, a challenge to the foundation of the expert's opinion must be made before an expert testifies. See Commonwealth v. Beausoleil, 397 Mass. 206 , 220-221 (1986); Department of Youth Servs. v. A Juvenile, 398 Mass. at 532; Commonwealth v. Vao Sok, 425 Mass. at 798. More specifically, "[t]o preserve objections to DNA analysis [on the basis of reliability], a defendant must file an appropriate pretrial motion

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stating the grounds for the objections and request a hearing in accordance with the principles set forth in Canavan's Case, 432 Mass. 304 , 309-312 (2000), and Commonwealth v. Lanigan, 419 Mass. 15 , 24-27 (1994)." Commonwealth v. Sparks, 433 Mass. at 659.

At a pretrial hearing, trial counsel stated that the testing may have been contaminated, and the judge, appropriately, responded that if evidence is presented "as to cast into doubt the results [of the DNA testing]" he would consider further hearings on its admissibility. That proof, however, was never forthcoming. [Note 8] Trial counsel in this case, as in Commonwealth v. Sparks, 433 Mass. at 659-660, may have chosen to forgo such a motion for tactical reasons. The defendant argues that this strategic choice was manifestly unreasonable. See Commonwealth v. Adams, 374 Mass. 722 , 728 (1978). We disagree.

The defendant's own expert, Dr. James McClintock, who reviewed all of the DNA testing done at Cellmark, opined that the STR testing had been contaminated and was, therefore, completely unreliable. Dr. McClintock also reviewed the Cellmark testing at the PM and DQA1 loci and concluded that his analysis of these tests was consistent with the results obtained by Cellmark. Based on the testing at the PM and DQA1 loci, Dr. McClintock gave an opinion that defendant's genetic profile, which matched the profile detected on DNA samples taken from the crime scene, occurs in the population with a frequency of one in 30,581. In view of this evidence, trial counsel may have concluded that it would be more advantageous for the defense to introduce evidence of test contamination, rather than to seek

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its exclusion. Because his expert had not uncovered any information that suggested testing at the PM and DQA1 loci was improperly done, it was virtually certain that those tests would be admitted. In view of this, defense counsel may have reasonably concluded that evidence of contamination in the STR testing could be used to argue that the other tests were tainted. The defendant did not file a motion for new trial raising any issue related to the reliability of the testing; "[c]onsequently, it is now too late to raise objections concerning the [testing procedures employed] and the conclusions reached." Commonwealth v. Sparks, 433 Mass. at 660.

The defendant now urges the court to consider that he "was unable to cross-examine [Dr. Reynolds] about . . . whether the testing was conducted in a way that may have contaminated the samples and whether the analyst who conducted the testing was biased in favor of the Commonwealth" and "whether any of the errors ('false positives') committed during internal proficiency testing had been committed by the analyst in this case." The defendant argues that, because he could not conduct a fruitful cross-examination in these areas, the testing cannot be determined to be reliable and, therefore, may not form a basis upon which an expert may formulate an opinion. [Note 9]

The defendant's assertions on appeal regarding which additional areas might have been probed on cross-examination simply do not suffice to establish that the testing in this case was so unreliably performed as to require the exclusion of the expert's testimony based on it. [Note 10] See Commonwealth v. Haas, 373 Mass. 545 , 563 (1977), S.C., 398 Mass. 806 (1986) (where substantial authority exists to establish the reliability of an opinion given by an expert, the testimony need not be proved infallible to be admissible); United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993) (allegation of failure to properly apply scientific principle should provide basis for exclusion of

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expert opinion only if a reliable methodology was so altered as to skew the methodology itself).

Finally, the defendant argues that, even if it was permissible for Dr. Reynolds to give an opinion, she should not have been permitted to testify to the underlying facts and data that formed the basis of that opinion. See Department of Youth Servs. v. A Juvenile, 398 Mass. at 532 (expert may only be required to disclose these facts or data on cross-examination); Commonwealth v. Jaime, 433 Mass. 575 , 577-578 (2001) (same). Here, while Dr. Reynolds admittedly went beyond giving an opinion and provided a fairly detailed description of the facts and data underlying her opinion, that evidence was cumulative of testimony offered by the defense expert. The facts and data may have, as noted by the defendant, added some heft to the expert's credibility, but it was not evidence of the type likely to affect the outcome of the trial. Rather, the critical evidence was Dr. Reynolds's properly admitted opinion testimony which permitted the jury to conclude that there was only a one in 160 million chance that someone other than the defendant committed the crime.

Judgments affirmed.